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Employment Law Weekly Notes - CANADA

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Course
HRM73000

Students will cover, in detail, aspects of current legislation affecting human resource management including: human rights codes, Employment Standards Act, Pay Equity Acts, the Charter of Rights and Freedoms, employment equity acts, and certain aspects of labour relations laws. This review will pro...

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Uploaded on August 25, 2023
Number of pages 82
Written in 2023/2024
Type Class notes
Professor(s) N/a
Contains All classes

ontario
canada
canadian law
employment law
law
business
employment law weekly notes

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WEEK 1: Employment Law in Ontario
Legal and Judicial Framework of Employment Laws

Sources of Employment Law
● Statute law - made by legislatures at provincial or federal levels
○ Passed when government feels employee protections are required beyond
what currently exists
● Common Law - based on recorded decisions of past judges
○ Called judgements or case law
○ Fill gaps in legislation

1. Statute Law
● Why are employment laws passed?
○ Demographic changes (Employment Equity Law)
○ Changing social values (Right to Disconnect Law)
○ Changes in Government (Amendment to Employment Equity Law)
○ Technological Changes (Privacy Law)
○ Other Pressures (Economy)

How Statutes are made:
A) Public Bills (Matters of national interest)
● First reading - Cabinet Minister introduces a bill into the legislature
● Second reading - debate bill in principle. If it passes a legislative vote, it
goes to a Committee of the legislature for clause-by-clause discussion
● Third reading - final vote of the legislature
● Royal Assent - signed by Lieutenant-Governor (Ontario) and it becomes a
statute

B) Private Bills (Individuals/Organizations)
● Cover non-public matters
● Changing organizational charters

C) Private Member Bills
a) Cover public matters
b) Are put forward by a private MPP, rather than Cabinet Minister
c) Rarely pass - meant to make a political point

Acts and Regulations
● Statutes (also known as “legislation” or “Acts”) contain the main requirements of
the law

, ● Regulations - contain the detailed requirements of the statute and can be
changed without amending the legislation
○ Made by government officials
○ E.g. minimum wage legislation

Statutory Interpretation
Rules of interpretation by judges:
1. Mischief rule - what problem was the statute meant to address? E.g. Pay Equity
2. Internal Aids - e.g Definition of Terms
3. External Aids - e.g. dictionaries, scholarly articles

Who can pass Employment Law?
Canada is a federal state with 3 levels of government
1. Municipal Government
- No direct jurisdiction over employment
2. Provincial Government (Queen’s Park, Toronto)
3. Federal Government (Parliament - Ottawa)
- Limited to industries of national importance

● The British North America Act (1867) divides legislative authority between the
federal and provincial governments. As interpreted
● Federal employment laws - cover employees working in industries of “national
importance” such as banks, shipping, telecommunications, broadcasting,
railways (10% of employees)
● Provincial employment laws - covers the other 90%

Key Ontario Employment Statutes:
1. Employment Standards Act - sets minimum terms and conditions of work that
apply to most employees (90%) in Ontario
2. Ontario Labour Relations Act - deals with the collective bargaining process and
employees’ right to unionize
3. Occupational Health and Safety Act - outlines health and safety requirements in
the workplace. Focus is on preventing workplace injuries and diseas
4. Workplace Safety and Insurance Act - no-fault insurance program that
compensates employees for work-related accidents and diseases
5. Human Rights Code - is aimed at preventing and remedying discrimination based
on certain prohibited grounds
6. Pay Equity Act - requires employers of a certain size to implement equal pay for
work of equal value

Key Federal Employment Statutes:

, 1. Canada Labour Code - minimum standards of employment/health and safety
collective bargaining for federal sector employers
2. Canadian Human Rights Act - human rights legislation governing federal sector
employers
3. Employment Equity Act - focuses on improving the representation and
employment status of certain disadvantaged groups in the workplace (i.e women,
disabled people, aboriginal people, visible minorities)
4. PIPEDA - Personal Information Protection and Electronic Documents Act - new
law that restricts collection, use, disclosure and retention of personal information
held by organizations

Federal Laws that Cover Both Federally and Provincially Regulated Employees
5. Canada Pension Plan (Federal) - a public pension plan
6. Employment Insurance Act ( Federal) - insurance for people temporarily
unemployed through no fault of their own

Canadian Charter of Rights and Freedoms
● Passed in 1982 as part of constitution
● Sets outs a broad range of rights and freedoms, including equality rights
● Applies only where there is an element of government activity (public sector)
● It is “supreme law” meaning it can override any legislation or government action
that is inconsistent with its principles

● Key Provision:
○ S.15 - Equality Rights - “Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of the law
without discrimination and, in particular, without discrimination based on
race, nation or ethnic origin, colour religion, sex, age or mental or physical
disability”

Charter’s Effect on Employment Law
● Any employment law can be challenged on the basis that it violates a right or
freedom guaranteed by the Charter (Nurse vs Mt Sinai)
● Private sector employers are affected where a Charter challenge causes
legislation be to struck down or amended (e.g. McKinney v University of Guelph)

Key Limitations to s.15 Rights
● S.1 - Infringement of rights allowed where it is a “reasonable limit in a free and
democratic society” (professors wanting to extend retirement age past 64)
● S.33 - Notwithstanding Clause

, ○ Federal or provincial governments may enact legislation in spite of Charter
(e.g. signs in French only in Quebec)

Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R 497
● Nancy Law was a 30-year-old widow who was denied Canada Pension Plan
(C.P.P) survivor benefits because under the formula for calculating benefits,
someone her age, without dependent children or a disability, was not eligible.
● Issue: Did denial of benefits infringe s.15 of the Charter by discriminating against
Nancy Law on the basis of age?

● Finding: The court ruled that s.15 was not violated even though on a plain
reading, she was discriminated against, the CPP aims to provide long-term
financial support for disadvantaged groups. The court rules that those under 35
years of age have greater capability of finding work and supporting themselves

2. The Common Law:
● Judge-made law that decides cases based on precedent (what previous
courts decided in similar situations
● Applied where there is no existing legislation (e.g statute definition of an
employee vs. case law interpretation)

Common Law and Employment
● Two main branches of the common law affect the employment
relationship:
1. Contract law - governs agreement between two parties
■ A valid contract requires: offer, acceptance, and
“consideration” (something promised in exchange)
■ Damages are awarded to place plaintiff in same position as if
contract had not been breached
■ E.g notice or pay in lieu of notice for terminated employees

2. Tort law
○ Applies where the law provides a remedy for a civil (non-
criminal) wrong
i. E.g defamation, negligence, assault
○ Damages are awarded to compensate the plaintiff for losses
suffered as a result of the defendant’s conduct
○ Covers damages independent of a contractual relationship
Common Law Principles
● Stare decisis - requires lower courts to stand by decisions made by higher courts

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